All posts by Steve Tinnelly

Attorney’s Fees Recovery

Governing Document Enforcement
In an action to enforce an association’s governing documents, the prevailing party must be awarded “reasonable attorney’s fees and costs.” (Civ. Code § 5975(c).)

“Prevailing Party”
The Davis-Stirling Act does not define the term “prevailing party,” nor does it provide a metric or formula for making that determination. As a result, California Courts have “concluded that the test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.” (Heather Farms HOA v. Robinson (1994) 21 Cal.App.4th 1568, 1574; See also “Prevailing Party & Attorney’s Fees.”)

Attorney’s Fees & Alternative Dispute Resolution (“ADR”)
Neither an association nor any of its members may file an “enforcement action” (i.e., a lawsuit) in superior court unless the parties to the dispute have “endeavored” to submit their dispute to “alternative dispute resolution” (ADR) in accordance with Civil Code Section 5930. (Civ. Code § 5930(a); See also “Alternative Dispute Resolution (ADR).”) ADR is essentially mediation where the parties to a dispute (i.e., the homeowner and the HOA) utilize the services of a third-party mediator to try and come to a mutual resolution. While each party to ADR is generally required to bear its own attorney’s fees, those attorney’s fees may become recoverable in any subsequent litigation regarding the dispute or to enforce a settlement agreement that was reached by the parties in ADR. (Grossman v. Park Fort Washington Association (2012) 212 Cal. App. 4th 1128; Rancho Mirage Country Club HOA v. Hazelbaker (2016) 2 Cal.App.5th 252.)

Other Causes of Action
The following provisions of the California Civil Code and Code of Civil Procedure provide for recovery of attorney’s fees in actions that may involve associations but not necessarily relate to enforcement of an association’s governing documents:

Anti-SLAPP Motion	Code Civ. Pro. § 425.16
Assessment Collection	Civ. Code § 5650
Contract Enforcement (where the disputed contract provides for attorney’s fees)*	Civ. Code § 1717
Discriminatory Restrictions	Civ. Code § 4225
Election Challenges (attorney’s fees are only available to a prevailing member, not a prevailing association.)*	Civ. Code § 5145(b)
Escrow Disclosure Violations	Civ. Code § 4540
Flags (display U.S. flag)*	Civ. Code § 4705(c)
Grants of Exclusive Use of Common Area (attorney’s fees are only available to a prevailing member, not a prevailing association.)*	Civ. Code § 4605(b)
Managing Agent: Deposit of Association Funds	Civ. Code § 5380(e)
Open Meeting Act Violations (attorney’s fees are only available to a prevailing member, not a prevailing association.)*	Civ. Code § 4955
Records Inspection (attorney’s fees are only available to a prevailing member, not a prevailing association.)*	Civ. Code § 5235
Records Misuse (attorney’s fees are available to a prevailing association.)*	Civ. Code § 5230
Satellite Dishes	Civ. Code § 4725(d)
Small Claims Appeals	Code Civ. Pro. § 116.780(c)
Solar Energy Systems	Civ. Code § 714(g)

Notable HOA Attorney’s Fees Case Law

Almanor Lakeside Villas Owners Association v. Carson
(2016) 246 Cal.App.4th 761
Where both sides achieved some positive net effect as a result of the court’s ruling, a prevailing party determination is made by comparing the practical effect of the relief attained by each; After resolving the issue of prevailing party in an action to enforce the governing documents, a trial court has no discretion to deny attorney’s fees.
Grossman v. Park Fort Washington Association
(2012) 212 Cal. App. 4th 1128
Pre-litigation attorney’s fees that are incurred in alternative dispute resolution (ADR) are recoverable by the prevailing party in subsequent ligation.
Rancho Mirage Country Club Homeowners Association v. Hazelbaker
(2016) 2 Cal.App.5th 252
An action to enforce a settlement agreement reached between a HOA and an owner through Alternative Dispute Resolution (ADR) was held to be an action to enforce the governing documents entitling the prevailing party to an award of attorney’s fees and costs pursuant to Civ. Code § 5975.
Heather Farms Homeowners Association v. Robinson
(1994) 21 Cal.App.4th 1568
The determination as to who is the “prevailing party” entitled to its attorney’s fees under the Davis-Stirling Act is based on the court’s analysis of which party prevailed on a practical level. When that determination is made, the court’s ruling should be affirmed on appeal absent an abuse of discretion.
Salehi v. Surfside III Condominium Owners Association
(2011) 200 Cal.App.4th 1146
A HOA is deemed a prevailing party entitled to recover its attorney’s fees where the outcome of the lawsuit results in the HOA realizing its litigation objectives on a practical level.
Tract 19051 Homeowners Association v. Kemp
(2015) 60 Cal. 4th 1135
Attorney’s fees may be recovered by the prevailing party under Civ. Code § 5975 in an action to enforce the governing documents regardless of whether the association is in fact a common interest development that is subject to the Davis-Stirling Act.
Martin v. Bridgeport Community Association
(2009) 173 Cal.App.4th 1024
Plaintiff’s lack of standing does not preclude Defendant HOA’s ability to recover its attorney’s fees as the prevailing party.

Vehicle Code Section 22658. Removal of Vehicles from Private Property.

(a) The owner or person in lawful possession of private property, including an association of a common interest development as defined in Sections 4080 and 4100 or Sections 6528 and 6534 of the Civil Code, may cause the removal of a vehicle parked on the property to a storage facility that meets the requirements of subdivision (n) under any of the following circumstances:

(1) There is displayed, in plain view at all entrances to the property, a sign not less than 17 inches by 22 inches in size, with lettering not less than one inch in height, prohibiting public parking and indicating that vehicles will be removed at the owner s expense, and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the owner or person in lawful possession of the property. The sign may also indicate that a citation may also be issued for the violation.

(2) The vehicle has been issued a notice of parking violation, and 96 hours have elapsed since the issuance of that notice.

(3) The vehicle is on private property and lacks an engine, transmission, wheels, tires, doors, windshield, or any other major part or equipment necessary to operate safely on the highways, the owner or person in lawful possession of the private property has notified the local traffic law enforcement agency, and 24 hours have elapsed since that notification.

(4) The lot or parcel upon which the vehicle is parked is improved with a single-family dwelling.

(b) The tow truck operator removing the vehicle, if the operator knows or is able to ascertain from the property owner, person in lawful possession of the property, or the registration records of the Department of Motor Vehicles the name and address of the registered and legal owner of the vehicle, shall immediately give, or cause to be given, notice in writing to the registered and legal owner of the fact of the removal, the grounds for the removal, and indicate the place to which the vehicle has been removed. If the vehicle is stored in a storage facility, a copy of the notice shall be given to the proprietor of the storage facility. The notice provided for in this section shall include the amount of mileage on the vehicle at the time of removal and the time of the removal from the property. If the tow truck operator does not know and is not able to ascertain the name of the owner or for any other reason is unable to give the notice to the owner as provided in this section, the tow truck operator shall comply with the requirements of subdivision (c) of Section 22853 relating to notice in the same manner as applicable to an officer removing a vehicle from private property.

(c) This section does not limit or affect any right or remedy that the owner or person in lawful possession of private property may have by virtue of other provisions of law authorizing the removal of a vehicle parked upon private property.

(d) The owner of a vehicle removed from private property pursuant to subdivision (a) may recover for any damage to the vehicle resulting from any intentional or negligent act of a person causing the removal of, or removing, the vehicle.

(e)

(1) An owner or person in lawful possession of private property, or an association of a common interest development, causing the removal of a vehicle parked on that property is liable for double the storage or towing charges whenever there has been a failure to comply with paragraph (1), (2), or (3) of subdivision (a) or to state the grounds for the removal of the vehicle if requested by the legal or registered owner of the vehicle as required by subdivision (f).

(2) A property owner or owner’s agent or lessee who causes the removal of a vehicle parked on that property pursuant to the exemption set forth in subparagraph (A) of paragraph (1) of subdivision (l) and fails to comply with that subdivision is guilty of an infraction, punishable by a fine of one thousand dollars ($1,000).

(f) An owner or person in lawful possession of private property, or an association of a common interest development, causing the removal of a vehicle parked on that property shall notify by telephone or, if impractical, by the most expeditious means available, the local traffic law enforcement agency within one hour after authorizing the tow. An owner or person in lawful possession of private property, an association of a common interest development, causing the removal of a vehicle parked on that property, or the tow truck operator who removes the vehicle, shall state the grounds for the removal of the vehicle if requested by the legal or registered owner of that vehicle. A towing company that removes a vehicle from private property in compliance with subdivision (l) is not responsible in a situation relating to the validity of the removal. A towing company that removes the vehicle under this section shall be responsible for the following:

(1) Damage to the vehicle in the transit and subsequent storage of the vehicle.

(2) The removal of a vehicle other than the vehicle specified by the owner or other person in lawful possession of the private property.

(g)

(1)

(A) Possession of a vehicle under this section shall be deemed to arise when a vehicle is removed from private property and is in transit.

(B) Upon the request of the owner of the vehicle or that owner s agent, the towing company or its driver shall immediately and unconditionally release a vehicle that is not yet removed from the private property and in transit.

(2) If a vehicle is released to a person in compliance with subparagraph (B) of paragraph (1), the vehicle owner or authorized agent shall immediately move that vehicle to a lawful location.

(h) A towing company may impose a charge of not more than one-half of the regular towing charge for the towing of a vehicle at the request of the owner, the owner s agent, or the person in lawful possession of the private property pursuant to this section if the owner of the vehicle or the vehicle owner s agent returns to the vehicle after the vehicle is coupled to the tow truck by means of a regular hitch, coupling device, drawbar, portable dolly, or is lifted off the ground by means of a conventional trailer, and before it is removed from the private property. The regular towing charge may only be imposed after the vehicle has been removed from the property and is in transit.

(i)

(1)

(A) A charge for towing or storage, or both, of a vehicle under this section is excessive if the charge exceeds the greater of the following:

(i) That which would have been charged for that towing or storage, or both, made at the request of a law enforcement agency under an agreement between a towing company and the law enforcement agency that exercises primary jurisdiction in the city in which is located the private property from which the vehicle was, or was attempted to be, removed, or if the private property is not located within a city, then the law enforcement agency that exercises primary jurisdiction in the county in which the private property is located.

(ii) That which would have been charged for that towing or storage, or both, under the rate approved for that towing operator by the Department of the California Highway Patrol for the jurisdiction in which the private property is located and from which the vehicle was, or was attempted to be, removed.

(B) A towing operator shall make available for inspection and copying his or her rate approved by the Department of the California Highway Patrol, if any, within 24 hours of a request without a warrant to law enforcement, the Attorney General, district attorney, or city attorney.

(2) If a vehicle is released within 24 hours from the time the vehicle is brought into the storage facility, regardless of the calendar date, the storage charge shall be for only one day. Not more than one day s storage charge may be required for a vehicle released the same day that it is stored.

(3) If a request to release a vehicle is made and the appropriate fees are tendered and documentation establishing that the person requesting release is entitled to possession of the vehicle, or is the owner s insurance representative, is presented within the initial 24 hours of storage, and the storage facility fails to comply with the request to release the vehicle or is not open for business during normal business hours, then only one day s storage charge may be required to be paid until after the first business day. A business day is any day in which the lienholder is open for business to the public for at least eight hours. If a request is made more than 24 hours after the vehicle is placed in storage, charges may be imposed on a full calendar day basis for each day, or part thereof, that the vehicle is in storage.

(j)

(1) A person who charges a vehicle owner a towing, service, or storage charge at an excessive rate, as described in subdivision (h) or (i), is civilly liable to the vehicle owner for four times the amount charged.

(2) A person who knowingly charges a vehicle owner a towing, service, or storage charge at an excessive rate, as described in subdivision (h) or (i), or who fails to make available his or her rate as required in subparagraph (B) of paragraph (1) of subdivision (i), is guilty of a misdemeanor, punishable by a fine of not more than two thousand five hundred dollars ($2,500), or by imprisonment in a county jail for not more than three months, or by both that fine and imprisonment.

(k)

(1) A person operating or in charge of a storage facility where vehicles are stored pursuant to this section shall accept a valid bank credit card or cash for payment of towing and storage by a registered owner, the legal owner, or the owner s agent claiming the vehicle. A credit card shall be in the name of the person presenting the card. Credit card means credit card as defined in subdivision (a) of Section 1747.02 of the Civil Code, except, for the purposes of this section, credit card does not include a credit card issued by a retail seller.

(2) A person described in paragraph (1) shall conspicuously display, in that portion of the storage facility office where business is conducted with the public, a notice advising that all valid credit cards and cash are acceptable means of payment.

(3) A person operating or in charge of a storage facility who refuses to accept a valid credit card or who fails to post the required notice under paragraph (2) is guilty of a misdemeanor, punishable by a fine of not more than two thousand five hundred dollars ($2,500), or by imprisonment in a county jail for not more than three months, or by both that fine and imprisonment.

(4) A person described in paragraph (1) who violates paragraph (1) or (2) is civilly liable to the registered owner of the vehicle or the person who tendered the fees for four times the amount of the towing and storage charges.

(5) A person operating or in charge of the storage facility shall have sufficient moneys on the premises of the primary storage facility during normal business hours to accommodate, and make change in, a reasonable monetary transaction.

(6) Credit charges for towing and storage services shall comply with Section 1748.1 of the Civil Code. Law enforcement agencies may include the costs of providing for payment by credit when making agreements with towing companies as described in subdivision (i).

(l)

(1)

(A) A towing company shall not remove or commence the removal of a vehicle from private property without first obtaining the written authorization from the property owner or lessee, including an association of a common interest development, or an employee or agent thereof, who shall be present at the time of removal and verify the alleged violation, except that presence and verification is not required if the person authorizing the tow is the property owner, or the owner s agent who is not a tow operator, of a residential rental property of 15 or fewer units that does not have an onsite owner, owner s agent or employee, and the tenant has verified the violation, requested the tow from that tenant s assigned parking space, and provided a signed request or electronic mail, or has called and provides a signed request or electronic mail within 24 hours, to the property owner or owner s agent, which the owner or agent shall provide to the towing company within 48 hours of authorizing the tow. The signed request or electronic mail shall contain the name and address of the tenant, and the date and time the tenant requested the tow. A towing company shall obtain, within 48 hours of receiving the written authorization to tow, a copy of a tenant request required pursuant to this subparagraph. For the purpose of this subparagraph, a person providing the written authorization who is required to be present on the private property at the time of the tow does not have to be physically present at the specified location of where the vehicle to be removed is located on the private property.

(B) The written authorization under subparagraph (A) shall include all of the following:

(i) The make, model, vehicle identification number, and license plate number of the removed vehicle.

(ii) The name, signature, job title, residential or business address, and working telephone number of the person, described in subparagraph (A), authorizing the removal of the vehicle.

(iii) The grounds for the removal of the vehicle.

(iv) The time when the vehicle was first observed parked at the private property.

(v) The time that authorization to tow the vehicle was given.

(C)

(i) When the vehicle owner or his or her agent claims the vehicle, the towing company prior to payment of a towing or storage charge shall provide a photocopy of the written authorization to the vehicle owner or the agent.

(ii) If the vehicle was towed from a residential property, the towing company shall redact the information specified in clause (ii) of subparagraph (B) in the photocopy of the written authorization provided to the vehicle owner or the agent pursuant to clause (i).

(iii) The towing company shall also provide to the vehicle owner or the agent a separate notice that provides the telephone number of the appropriate local law enforcement or prosecuting agency by stating If you believe that you have been wrongfully towed, please contact the local law enforcement or prosecuting agency at [insert appropriate telephone number]. The notice shall be in English and in the most populous language, other than English, that is spoken in the jurisdiction.

(D) A towing company shall not remove or commence the removal of a vehicle from private property described in subdivision (a) of Section 22953 unless the towing company has made a good faith inquiry to determine that the owner or the property owner s agent complied with Section 22953.

(E)

(i) General authorization to remove or commence removal of a vehicle at the towing company s discretion shall not be delegated to a towing company or its affiliates except in the case of a vehicle unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or in a manner which interferes with an entrance to, or exit from, the private property.

(ii) In those cases in which general authorization is granted to a towing company or its affiliate to undertake the removal or commence the removal of a vehicle that is unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or that interferes with an entrance to, or exit from, private property, the towing company and the property owner, or owner s agent, or person in lawful possession of the private property shall have a written agreement granting that general authorization.

(2) If a towing company removes a vehicle under a general authorization described in subparagraph (E) of paragraph (1) and that vehicle is unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or in a manner that interferes with an entrance to, or exit from, the private property, the towing company shall take, prior to the removal of that vehicle, a photograph of the vehicle that clearly indicates that parking violation. Prior to accepting payment, the towing company shall keep one copy of the photograph taken pursuant to this paragraph, and shall present that photograph and provide, without charge, a photocopy to the owner or an agent of the owner, when that person claims the vehicle.

(3) A towing company shall maintain the original written authorization, or the general authorization described in subparagraph (E) of paragraph (1) and the photograph of the violation, required pursuant to this section, and any written requests from a tenant to the property owner or owner s agent required by subparagraph (A) of paragraph (1), for a period of three years and shall make them available for inspection and copying within 24 hours of a request without a warrant to law enforcement, the Attorney General, district attorney, or city attorney.

(4) A person who violates this subdivision is guilty of a misdemeanor, punishable by a fine of not more than two thousand five hundred dollars ($2,500), or by imprisonment in a county jail for not more than three months, or by both that fine and imprisonment.

(5) A person who violates this subdivision is civilly liable to the owner of the vehicle or his or her agent for four times the amount of the towing and storage charges.

(m)

(1) A towing company that removes a vehicle from private property under this section shall notify the local law enforcement agency of that tow after the vehicle is removed from the private property and is in transit.

(2) A towing company is guilty of a misdemeanor if the towing company fails to provide the notification required under paragraph (1) within 60 minutes after the vehicle is removed from the private property and is in transit or 15 minutes after arriving at the storage facility, whichever time is less.

(3) A towing company that does not provide the notification under paragraph (1) within 30 minutes after the vehicle is removed from the private property and is in transit is civilly liable to the registered owner of the vehicle, or the person who tenders the fees, for three times the amount of the towing and storage charges.

(4) If notification is impracticable, the times for notification, as required pursuant to paragraphs (2) and (3), shall be tolled for the time period that notification is impracticable. This paragraph is an affirmative defense.

(n) A vehicle removed from private property pursuant to this section shall be stored in a facility that meets all of the following requirements:

(1)

(A) Is located within a 10-mile radius of the property from where the vehicle was removed.

(B) The 10-mile radius requirement of subparagraph (A) does not apply if a towing company has prior general written approval from the law enforcement agency that exercises primary jurisdiction in the city in which is located the private property from which the vehicle was removed, or if the private property is not located within a city, then the law enforcement agency that exercises primary jurisdiction in the county in which is located the private property.

(2)

(A) Remains open during normal business hours and releases vehicles after normal business hours.

(B) A gate fee may be charged for releasing a vehicle after normal business hours, weekends, and state holidays. However, the maximum hourly charge for releasing a vehicle after normal business hours shall be one-half of the hourly tow rate charged for initially towing the vehicle, or less.

(C) Notwithstanding any other provision of law and for purposes of this paragraph, normal business hours are Monday to Friday, inclusive, from 8 a.m. to 5 p.m., inclusive, except state holidays.

(3) Has a public pay telephone in the office area that is open and accessible to the public.

(o)

(1) It is the intent of the Legislature in the adoption of subdivision (k) to assist vehicle owners or their agents by, among other things, allowing payment by credit cards for towing and storage services, thereby expediting the recovery of towed vehicles and concurrently promoting the safety and welfare of the public.

(2) It is the intent of the Legislature in the adoption of subdivision (l) to further the safety of the general public by ensuring that a private property owner or lessee has provided his or her authorization for the removal of a vehicle from his or her property, thereby promoting the safety of those persons involved in ordering the removal of the vehicle as well as those persons removing, towing, and storing the vehicle.

(3) It is the intent of the Legislature in the adoption of subdivision (g) to promote the safety of the general public by requiring towing companies to unconditionally release a vehicle that is not lawfully in their possession, thereby avoiding the likelihood of dangerous and violent confrontation and physical injury to vehicle owners and towing operators, the stranding of vehicle owners and their passengers at a dangerous time and location, and impeding expedited vehicle recovery, without wasting law enforcement s limited resources.

(p) The remedies, sanctions, restrictions, and procedures provided in this section are not exclusive and are in addition to other remedies, sanctions, restrictions, or procedures that may be provided in other provisions of law, including, but not limited to, those that are provided in Sections 12110 and 34660.

(q) A vehicle removed and stored pursuant to this section shall be released by the law enforcement agency, impounding agency, or person in possession of the vehicle, or any person acting on behalf of them, to the legal owner or the legal owner s agent upon presentation of the assignment, as defined in subdivision (b) of Section 7500.1 of the Business and Professions Code; a release from the one responsible governmental agency, only if required by the agency; a government-issued photographic identification card; and any one of the following as determined by the legal owner or the legal owner s agent: a certificate of repossession for the vehicle, a security agreement for the vehicle, or title, whether paper or electronic, showing proof of legal ownership for the vehicle. Any documents presented may be originals, photocopies, or facsimile copies, or may be transmitted electronically. The storage facility shall not require any documents to be notarized. The storage facility may require the agent of the legal owner to produce a photocopy or facsimile copy of its repossession agency license or registration issued pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code, or to demonstrate, to the satisfaction of the storage facility, that the agent is exempt from licensure pursuant to Section 7500.2 or 7500.3 of the Business and Professions Code.

Initiating ADR: Request for Resolution

In order for a party to initiate alternative dispute resolution (“ADR”), the party is required to serve on the other parties to the dispute a “Request for Resolution” pursuant to Civil Code Section 5935. The Request for Resolution must include all of the following items of information:

A brief description of the dispute between the parties; (Civ. Code § 5935(a)(1).)
A request for ADR; (Civ. Code § 5935(a)(2).)
A notice that the party receiving the Request for Resolution is required to respond within thirty (30) days of receipt or the request will be deemed rejected; and (Civ. Code § 5935(a)(3).)
If the party on whom the request is served is the member, a copy of Article 3, of Chapter 10 of the Davis-Stirling Act (a copy of Civil Code Sections 5925-5965). (Civ. Code § 5935(a)(4).) However, even if an association does not entirely satisfy this requirement and a lawsuit is ultimately filed by the association, it may not provide grounds to dismiss the lawsuit unless the association’s failure to provide the member with copies of the ADR Code Sections results in prejudice to the member. (Ryland Mews HOA v. Munoz (2015) Cal. App. 4th 705, 710-711.)

Method of Service
The Request for Resolution must be served by personal delivery, first-class mail, facsimile transmission, or “other means reasonably calculated to provide the party on whom the request is served actual notice of the request.” (Civ. Code § 5935(b).) Once the Request for Resolution is validly served, the party on whom the Request for Resolution is served has thirty (30) days to accept or reject the request; if the party does not respond within that timeframe, the Request for Resolution is deemed rejected. (Civ. Code § 5935(c).)

ADR Timelines

30 Days to Accept Request for Resolution – A party on whom a Request for Resolution is served has thirty (30) days following service to accept or reject the request. (Civ. Code § 5935(c).) If the party does not accept the request within that period (or simply fails to respond), the request is deemed rejected by that party. (Civ. Code § 5935(c).)
90 Days to Complete ADR – If the party on whom a Request for Resolution is served accepts the request, the parties are required to complete ADR within ninety (90) days after the date the acceptance was received, unless the period is extended by written stipulation signed by both parties. (Civ. Code § 5940(a).)

Effect on Statute of Limitations
If a Request for Resolution is served before the applicable statute of limitations has run for commencing an enforcement action, the statute of limitations is tolled:

During the the thirty (30) day period for a response a Request for Resolution, (Civ. Code § 5945(a).) and
If the Request for Resolution is accepted, during the the ninety (90) day period to complete ADR, including any extension of time for completing the ADR that is stipulated to by the parties. (Civ. Code § 5945(b).)

Ryland Mews Homeowners Association v. Munoz

(2015) 234 Cal.App.4th 705

[Architectural Control; Nuisances; Hardsurface Flooring] A HOA has the authority to place restrictions on the type of flooring that may be installed in a homeowner’s unit in order to prevent the creation of nuisances.

Plastiras & Terrizzi, Michael Patrick Terrizzi; and Mariam Smairat for Plaintiffs and Respondents.
Ruben Munoz, in pro. per.; and John M. Wadsworth for Defendant and Appellant.

OPINION

ELIA, Acting P. J. —

In this dispute between defendant Ruben Munoz and plaintiff Ryland Mews Homeowners Association (HOA or Association), plaintiff obtained a preliminary injunction requiring Munoz to remedy the unauthorized modification of the flooring in his upstairs condominium unit to reduce the transmission of noise to the unit below. Defendant contends that the superior court improperly balanced the prospective harm to each party and erroneously concluded that plaintiff would prevail at trial. We find no abuse of discretion and will therefore affirm the order.

Background

When defendant and his wife moved into unit No. 322 of the subject property in February 2011, he replaced the carpets with hardwood floors to accommodate his wife’s severe dust allergy. After the installation, Resty Cruz and David Yborra, occupants of the unit below, began to experience “sound transfer” through the floor. Before defendant’s occupancy Cruz and Yborra had never had any problems with sound transmission from above. But after February 2011 the noise from upstairs at all hours of the day and night became “greatly amplified” and “intolerable,” so that Cruz and Yborra found it difficult to relax, read a book, watch television, or sleep.

On November 28, 2011, Susan Hoffman, an employee of the firm that provided property management services for the Association, wrote to defendant, notifying him that his alteration of the flooring appeared to have been made without prior approval of the HOA. Hoffman requested a copy of the written approval in the event that the property management files were incomplete. Defendant did not respond within the 30 days Hoffman had given him, so on January 31, 2012, with authorization from the HOA board of directors, Hoffman wrote to defendant again, this time requesting alternative dispute resolution (ADR) under the Davis-Stirling Common Interest Development Act, Civil Code former section 1369.530 (now Civ. Code, § 5935).^{[FN. 1]} [708] Included in the letter was the text of former section 1369.530, which expressly allowed defendant 30 days in which to accept or reject ADR; after that period, the request was to be deemed rejected. (Former § 1369.530, subd. (c).) Defendant still did not respond.

Plaintiff brought this action on July 12, 2012, seeking an injunction and declaratory relief. Plaintiff alleged that defendant had violated the restrictions applicable to all residents at the time of the floor installation. On September 28, 2012, plaintiff applied for a preliminary injunction, “restraining and enjoining” defendant from “[m]aintaining hardwood flooring” and from violating other HOA restrictions. Attaching declarations from Hoffman, Cruz, and Yborra, plaintiff alleged that without the requested injunction, adjacent homeowners would continue to suffer “great and immediate irreparable harm in that Defendant’s hardwood floors create an acoustic nuisance, both violating the neighboring owner’s sense of quiet enjoyment, but also [sic] reducing property values for all owners within the Association.” Plaintiff further asserted that it was “inevitable” that it would ultimately prevail in the action and that compliance with the HOA rules would be of only “moderate” cost to defendant.

Defendant opposed the motion, contending that hardwood floors were necessary in his home because his wife was severely allergic to dust; consequently, removing the floors and installing new floors not only would be expensive but would endanger his wife’s health. He found the likelihood of plaintiff’s success on the merits to be “questionable” and maintained that no irreparable harm had been shown. Both defendant and his wife, Elena Delgado, submitted declarations describing Delgado’s medical condition. Defendant also stated that he had received no complaints about noise between the time of installation in February 2011 and the notice of November 28, 2011.

On December 12, 2012, defendant moved to strike the complaint, enter judgment on the pleadings, and refer the matter to ADR. Defendant contended that plaintiff had failed to file a certificate stating that the ADR requirements set forth in former section 1369.530 had been met or waived. The court granted defendant’s motion to strike as authorized by former section 1369.560, subdivision (b). It granted plaintiff leave to amend, however, and it denied defendant’s motion for judgment on the pleadings as well as his request for referral to ADR. Plaintiff then amended its complaint and submitted a certificate of compliance in accordance with former section 1369.560, subdivision (a)(2), (3).

The hearing on the injunction request took place on December 13, 2012. The court confirmed with plaintiff that it was not demanding that defendant [709] “tear up the floors,” but sought only a “proposal through a contractor” for a modification consistent with the HOA rules. Plaintiff added a request for an interim solution, that throw rugs be placed on 80 percent of the floors outside the kitchen and bath areas. The court found those suggestions reasonable and granted the request. Its written order, however, was not filed until April 2013.

In March 2013 defendant demurred to the first amended complaint and again moved to strike, alleging an insufficient certificate showing compliance with the statutory ADR provisions, plaintiff’s failure “to state facts demonstrating a cause of action,” and its failure “to demonstrate the necessity for injunctive relief.” This time, however, the court overruled the demurrer and denied the motion to strike, observing that factual disputes existed which should not be resolved at the pleading stage of the litigation.

On the same day, April 17, 2013, the court filed its order granting the preliminary injunction. As the language of the order informs defendant’s analysis of it as an unjustified mandatory injunction, we quote the relevant portions: “1. Any further installation of flooring or floor covering in your separate interest located at 435 N. 2nd St. #322 San Jose, CA shall be in compliance with the Association governing documents. [¶] 2. You shall reduce undue transmission of acoustic trespass or nuisance from the subject unit in violation of the governing documents. Such transmissions shall be reduced as follows: … 80% of the total flooring area, other than kitchen or bathrooms[,] must be covered with throw rugs or comparable sound[-] dampening material, in particular those areas with heavy travel such as hallways; [¶] 3. You shall present to the Ryland Mews Homeowners Association, through its Board of Directors or design review committee, a proposal for modification to the existing floor covering, such proposal to be within the specific approved guidelines and specifications for floor covering modifications established by the Association.” The modification proposal had to be submitted within 30 days. If plaintiff rejected the proposal in good faith, based on the Association’s architectural standards, defendant then had an additional 15 days to supplement or revise his proposal. If defendant’s plans were approved, defendant had 15 days thereafter to initiate construction of the modifications and 60 days to complete the construction. He then was required to notify the Association and “cooperate with a compliance inspection.” From that order granting the injunction defendant brought this timely appeal.

Discussion

Defendant raises two issues on appeal. He first contends that the court abused its discretion in granting the injunction, which he classifies as mandatory. He then asserts that the court “lacked jurisdiction” to issue the [710] injunction because the ADR request did not comply with former section 1369.530 (now § 5935). Because this second issue will be dispositive if defendant is correct, we address it first.

1. Compliance with former section 1369.530

(1) Under former section 1369.520, subdivision (a), plaintiff, as an association managing a common interest development, was prohibited from filing an action for declaratory, injunctive, or writ relief against defendant unless the parties had “endeavored to submit their dispute to alternative dispute resolution pursuant to this article.” Plaintiff could initiate this process by complying with former section 1369.530. That section required plaintiff to serve on defendant a “Request for Resolution” containing the following: “(1) A brief description of the dispute between the parties. [¶] (2) A request for alternative dispute resolution. [¶] (3) A notice that the party receiving the Request for Resolution is required to respond within 30 days of receipt or the request will be deemed rejected. [¶] (4) If the party on whom the request is served is the owner of a separate interest, a copy of this article.” (Former § 1369.530, subd. (a).)

Defendant’s grievance is directed at the last condition. He complains that he did not receive a copy of the entire article, which comprised the ADR provisions applicable to common interest developments. (See former §§ 1369.510-1369.570.) Defendant insists that in its ADR request to him plaintiff did not substantially comply with former section 1369.530, subdivision (a)(4), when it included a copy of only that statute. He then contends, “Because Mr. Munoz challenged the defect by way of a demurrer and a motion to strike, the trial court should have granted his relief.”

We are not, however, reviewing the court’s order overruling defendant’s demurrer and denying his motion to strike the first amended complaint.^{[FN. 2]} It was in that demurrer and motion to strike, not his opposition to the injunction, that defendant raised the issue of noncompliance with former section 1369.530. Furthermore, defendant cites no authority for his assertion that plaintiff’s failure to provide the entire article 2 of chapter 7 of title 6 of part 4 of division 2 in requesting ADR deprived the court of jurisdiction to issue the preliminary injunction.

Nor does he identify any prejudice attributable to plaintiff’s technical deficiency in complying with the statute. While pointing out that the “obvious purpose” of former section 1369.530, subdivision (a)(4), is to “apprise the [711] owner of important procedural rights and duties involved in the ADR process,” defendant, an attorney, has never asserted that he did not understand his rights. The letter he received requesting ADR informed him that he had 30 days to accept or reject the request, and that if he did not respond, he would be deemed to have rejected it. He implicitly rejected the request. Although the request letter contained the entire text of former section 1369.530 — including subdivision (a)(4), the provision requiring plaintiff to provide a copy of article 2 of chapter 7 of title 6 of part 4 of division 2 — defendant never complained that he had not received the entirety of that article until his motion to strike the complaint. And even then his supporting declaration did not relate any confusion about or misunderstanding of his rights. Also absent in defendant’s argument is any indication that he would have accepted plaintiff’s request if he had received the entire article governing the procedures involved in ADR between him and the Association. In these circumstances we cannot find prejudice in the omission of the remaining statutory provisions in article 2.^{[FN. 3]}

2. Merits of the preliminary injunction request

(2) In deciding whether to issue a preliminary injunction, a court must weigh two “interrelated” factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999 [90 Cal.Rptr.2d 236, 987 P.2d 705]; Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 [261 Cal.Rptr. 574, 777 P.2d 610].) “[T]he decision to grant a preliminary injunction rests in the sound discretion of the trial court.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 [196 Cal.Rptr. 715, 672 P.2d 121].) Accordingly, on appeal we review that decision for abuse of discretion. “A trial court will be found to have abused its discretion only when it has `”exceeded the bounds of reason or contravened the uncontradicted evidence.”‘ [Citations.] Further, the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion.” (Ibid.; Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1047 [151 Cal.Rptr.3d 65].)

[712] In reviewing the lower court’s ruling for abuse of discretion, we do not reweigh the evidence or evaluate the credibility of witnesses. “`[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court’s province to resolve conflicts.’ [Citation.] Our task is to ensure that the trial court’s factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625 [43 Cal.Rptr.2d 774].)

Defendant contends that a higher level of scrutiny is called for here because the superior court’s order was “clearly a mandatory injunction,” not a prohibitory one.^{[FN. 4]} In his view the injunction “cannot bear that scrutiny because the facts presented in support of the injunction did not demonstrate that this was an extreme case in which the right to mandatory injunctive relief was clear, or that irreparable harm would ensue without the order actually granted.”

Defendant’s argument in effect asks this court to reweigh the evidence. He repeats his assertion that he did not violate the HOA restrictions; two of the alleged rules “didn’t exist when he installed the hardwood floors. He couldn’t have breached them.” He further suggests that his own opposition “cast[s] severe doubt on the credibility of the sound problems described by Mr. Yborra and Mr. Cruz.” Defendant further contests the remedy imposed in the injunction. Noting the interim measure of using throw rugs on the floors, he insists that there were “other, less draconian” remedies than “requiring Mr. Munoz to tear out his entire floor.”

Defendant’s analysis is flawed. Not only does he request an improper reweighing of the witnesses’ credibility, his contentions are premised on an inaccurate representation of the evidence presented below. Contrary to defendant’s assumption, for example, plaintiff was not relying on the 2012 HOA rules; in asking for the injunction it clearly relied on the 1993 [713] “Declaration of Restrictions,” which was in effect when defendant replaced the carpeting with hardwood floors. Section 3.3 of that document provided, “No activity shall be conducted in any Unit or Common Area that constitutes a nuisance or unreasonably interferes with the use or quiet enjoyment of the occupants of any other Condominium.” Section 3.17 more specifically stated, “No Unit shall be altered in any manner that would increase sound transmission to any adjoining or other Unit, including, but not limited to, the replacement or modification of any flooring or floor covering that increases sound transmissions to any lower Unit.” And under section 7.2(v), prior written approval had to be obtained from the architectural review committee before “[a]ny replacement or modification to any floor coverings or wall or ceiling materials or any penetration or other disturbance of any wall, floor, or ceiling, if the replacement[,] modification, penetration or disturbance could result in any increase in the sound transmissions from the Unit to any other Unit.” Defendant’s protest that he was wrongly accused of violating nonexistent restrictions is without merit.

Defendant further misrepresents the court’s order. The court did not direct him to tear out the hardwood floors; at the hearing it emphasized more than once that it did not want anyone inferring that “he’s got to go back out and tear up the floors. That’s not what I’m ordering.” What the court did order was a proposal from defendant to the board of directors or to a design review committee for modifying the floors to bring them into compliance with the guidelines established by the Association.

(3) We see no abuse of discretion in such an order, even if the injunction was of a mandatory rather than prohibitory nature subject to heightened appellate scrutiny. Indeed, the directive to find a compromise in modifying the flooring, as well as the interim remedy of using throw rugs, reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant’s violation of the noise and nuisance restrictions. The finding that defendant’s violation of the HOA rules had resulted in a continuing “great nuisance” for the occupants below was supported by substantial evidence in the declarations of Cruz and Yborra, whose credibility was for the superior court, not this court, to determine. The evidence clearly supported the court’s weighing of the relative interim harm to the parties and its implied determination that plaintiff would ultimately prevail on the merits. We must conclude, therefore, that defendant has failed to meet his burden to show that the court exceeded the bounds of reason or contravened uncontradicted evidence. Reversal is not required.

[714] Disposition

The order is affirmed.

Bamattre-Manoukian, J., and Mihara, J., concurred.

[FN. 1] All further statutory references are to the Civil Code.

[FN. 2] The challenge to this order was made by a petition for writ of mandate, which this court summarily denied. On appeal defendant duplicates the argument raised in the petition, even to the extent that he refers to himself as the real party in interest.

[FN. 3] In addition to former section 1369.530, article 2 of chapter 7 of title 6 of part 4 of division 2 consisted of (1) an explanation of the terms “`[a]lternative dispute resolution'” and “`[e]nforcement action'” (former § 1369.510); (2) the requirement that ADR be attempted before an association may file an action for injunctive, declaratory, or writ relief (former § 1369.520); (3) the requirement that ADR be completed within 90 days (former § 1369.540); (4) the tolling of the statute of limitations after the ADR request is served (former § 1369.550); (5) the requirement of a certificate of compliance (former § 1369.560); (6) referral of the action to ADR by stipulation of the parties (former § 1369.570); (7) a provision governing the court’s consideration of fees and costs (former § 1369.580); and (8) a requirement that an association provide the members with an annual summary of article 2 (former § 1369.590).

[FN. 4] “`[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.'” (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1048, quoting Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446 [60 Cal.Rptr.2d 641].) Although a preliminary mandatory injunction is subject to stricter review on appeal, (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 [83 Cal.Rptr.2d 455]), “[t]he principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied” (Allen v. Stowell (1905) 145 Cal. 666, 669 [79 P. 371]).

Loss Assessment Insurance

An association may sustain a loss that is not entirely covered by the association’s insurance policies. For example, if a person sustains bodily injury while using the common areas and $3 million dollars in damages are awarded, the association’s insurance carrier will not cover the amount of damages which exceed the association’s $2 million dollar policy limit. In that situation, the association would likely be required to levy a special assessment (specifically, an “emergency assessment” pursuant to Civil Code Section 5610(a)) against the membership to cover the difference ($1 million dollars).

“Loss assessment insurance” is insurance that would generally cover the cost of the member’s portion of that special assessment. Loss assessment insurance is not purchased by the association, but by the association’s individual members. Loss assessment insurance can be purchased as an independent policy, but is more commonly purchased as a rider that is added to an owner’s underlying insurance policy.

Owner & Tenant Insurance Requirements

The requirements for owners and tenants residing within a condominium association to purchase and maintain insurance for their respective units depends primarily on the scope of insurance which the association is required to carry. If there are gaps in coverage (i.e., if the association has a “bare-walls” policy), the association’s CC&Rs typically contain provisions requiring owners to purchase and maintain insurance necessary to fill the gap.

“Walls-In” Policies
Both the Civil Code and the association’s CC&Rs require the association to purchase and maintain insurance on the common areas/elements existing throughout the project. Some sets of CC&Rs require the association to purchase and maintain what is commonly known as “Walls-In” insurance coverage that not only covers the common areas/elements that bound the separate interests (the units), but also covers any damage or loss to the improvements existing within the units. This type of broad coverage is more expensive for the association as compared to “bare-walls” coverage, and thus results in a higher level of regular assessments.

“Bare-Walls” Policies
“Bare-Walls” coverage is a less expensive form of insurance coverage because it does not cover any damage or loss sustained to the improvements and property located within the interior of an owner’s unit. In situations where an association is only required to purchase a Bare-Walls policy, the association’s CC&Rs almost always contain a provision requiring each owner to purchase and maintain insurance covering the improvements and property located within the interior of the owner’s unit. This separate coverage that an owner would purchase would extend to everything existing within the airspace of the unit (i.e., cabinets, flooring finishes, appliances, etc. existing within the block of space bounded by the unit’s perimeter walls, floors and ceilings).

Owner Insurance: HO-6 Policy
The insurance policy that an owner purchases is known as a HO-6 policy (aka “Condominium Unit Owner Policy” or “Homeowners 6 Policy”). It covers all of the personal property and improvements located within the interior of the owner’s unit, personal injury or property damage sustained inside of an owner’s unit, any expenses (i.e., hotel expenses) relating to an owner’s loss of use of his/her unit while repairs are being performed, and loss assessment coverage.

Tenant Insurance: HO-4 Policy
Some CC&Rs require tenants residing within the association’s development to purchase and maintain a HO-4 policy that protects the tenant’s personal property against loss and limits the tenant’s exposure to personal liability.

Internal Dispute Resolution (IDR)

An association is required to provide a “fair, reasonable, and expeditious procedure for resolving a dispute” between the association and a member involving the rights, duties or liabilities under the Davis-Stirling Act or the association’s governing documents. (Civ. Code §§ 5900, 5905.) This procedure is referred to as “Meet and Confer” and more commonly as “Internal Dispute Resolution” (IDR). The purpose of IDR is to provide a non-judicial forum to resolve disputes between a member and the association that will not result in a fee or a charge to the member.

Notice of IDR Procedure in Annual Policy Statement
An association’s annual policy statement must include a description of the association’s IDR procedure. (Civ. Code §§ 5310(a)(9), 5920.)

Minimum Requirements of IDR Procedure
The IDR procedure established by an association must, at a minimum, satisfy all of the following requirements: (Civ. Code § 5910.)

Invoking IDR – The procedure may be invoked by either party to the dispute, and a request to invoke the IDR procedure must be in writing. (Civ. Code § 5910(a).)
Deadlines & Timeline for Action by Association – The IDR procedure must provide for prompt deadlines, and must state the maximum time for the association to act on a request to invoke IDR. (Civ. Code § 5910(b).)
Participation in IDR – If IDR is invoked by a member, the association must participate in IDR. If IDR is invoked by the association, the member may elect not to participate in IDR. If the member participates but the dispute is resolved other than by agreement of the member, the member must have the right of appeal to the board. (Civ. Code § 5910(c)-(d).)
Written Resolution is Binding & Enforceable – If a written resolution is signed by both parties to IDR, that resolution is binding and judicially enforceable provided that it is not in conflict with the law or the association’s governing documents. (Civ. Code § 5910(e).)
Explaining Positions & Attorney Assistance – The IDR procedure must provide a means by which the member and the association may explain their respective positions. The member and the association may be assisted by an attorney or another person in explaining their positions, at their own cost. (Civ. Code § 5910(f).)
No Fee Charged to Member – A member of the association may not be charged a fee to participate in IDR. (Civ. Code § 5910(g).)

Default IDR Procedure
If an association does not establish its own IDR procedure that satisfies the requirements discussed above, Civil Code Section 5915 establishes the following default IDR procedure:

The party may request the other party to meet and confer in an effort to resolve the dispute. The request must be in writing. (Civ. Code § 5915(b)(1).)
A member of an association may refuse a request to meet and confer. The association may not refuse a request to meet and confer. (Civ. Code § 5915(b)(2).)
The board must designate a director to meet and confer. (Civ. Code § 5915(b)(3).)
The parties must meet promptly at a mutually convenient time and place, explain their positions to each other, and confer in good faith in an effort to resolve the dispute. The parties may be assisted by an attorney or another person at their own cost when conferring. (Civ. Code § 5915(b)(4).)
A resolution of the dispute agreed to by the parties must be memorialized in writing and signed by the parties, including the board designee on behalf of the association. That written resolution is binding and judicially enforceable so long as the agreement (1) is not in conflict with the law or the association’s governing documents, and (2) is either consistent with the authority granted by the board to its designee or is ratified by the board. (Civ. Code § 5915(b)(5),(c).)
A member may not be charged a fee to participate in IDR. (Civ. Code § 5915(d).)

Written Resolution Obtained in IDR
As referenced above, a written resolution signed by the parties to IDR is binding and judicially enforceable provided that it is (1) not in conflict with the law or the association’s governing documents, and (2) is within the board’s authority (or the authority given to the board’s designee) and/or is ratified by the board. (Civ Code §§ 5910(e), 5915(c).)

Attorney Assistance at IDR
As a result of Assembly Bill 1738, the Civil Code’s provisions pertaining to IDR were amended by the California Legislature and the changes which took effect on January 1, 2015 now allow for a member to bring an attorney or other person with him/her to the IDR proceeding in order to assist the member at the member’s expense. (Civ. Code §§ 5910(b), 5915(b)(4).) The Civil Code does not contain any requirement for a member to provide the association with advance notice of the member’s intent to bring an attorney to the IDR proceeding. Many HOA attorneys take the position that having a member’s attorney at an IDR proceeding without also having the association’s attorney present could violate Rule 2-100 of the California Rules of Professional Conduct. That rule prohibits an attorney from communicating with parties whom the attorney knows to be represented by legal counsel. (See Rule 2-100.) Many associations therefore opt to include a requirement in their IDR procedure for the member to provide the association advance notice of the member’s intent to have an attorney present at the IDR proceeding.

IDR Prior to Litigation
If a member requests IDR in connection with a dispute, the association may not file a lawsuit against the member regarding that dispute without first having participated in IDR with the member. (Civ. Code § 5910.1.)

Ruoff v. Harbor Creek Community Association

(1992) 10 Cal.App.4th 1624

[Insurance; Liability] A HOA’s members were held personally liable in excess of the HOA’s insurance policy limit for injuries stemming from the HOA’s common areas that were owned by the HOA’s members as tenants in common.

Dicaro, Highman, D’Antony, Dillard, Fuller & Gregor, Henry P. Schrenker, Sheri Laughlin Bills, Cassidy, Warner, Brown, Combs & Thurber, Lloyd W. Felver, Stockdale, Peckham & Werner, Kelly A. Woolsey, Waters, McCluskey & Boehle and Joseph R. Saunders for Defendants and Respondents.

OPINION
SONENSHINE, J.

Martha Ruoff and Russell Ruoff, individually and as Martha’s conservator, challenge summary judgments entered in favor of various defendants [FN. 1] in a suit arising out of Martha’s slip and fall on a stairway in the common area of the 152-unit Harbor Creek complex. Martha sustained catastrophic injuries. According to appellants, whose statement is uncontradicted by respondents, on August 9, 1988, Martha fell backwards, landing at the bottom of the stairs, her foot wedged in a gap between the side of the building and the edge of the stairs. Comatose and bleeding, she was taken to Mission Hospital and admitted to the intensive care unit (ICU) where she was treated for multiple skull fractures. Due to complications, she underwent partial amputation of her left thumb, index and middle fingers. A month after the accident, a percutaneous endoscopic gastrostomy (insertion of a feeding tube in the stomach) was performed. The following month, a lumbo-peritoneal shunt was inserted in her spine for draining fluids. Martha remained in a coma. A tracheotomy tube inserted at the time of the accident was not removed for two and one-half months. Released from Mission Hospital after 107 days in the ICU, Martha was transferred to the Rehabilitation Institute of Santa Barbara, where she underwent a course of treatment and therapy until, after eight months, the Ruoffs were no longer able to pay for the institutional care. Martha now lives at home, where her 72-year-old husband takes care of her. She is unable to bathe, dress or feed herself. She is incontinent in bladder and bowel. Her diagnosis and prognosis include “probable permanent memory loss, gait disturbance, incontinence and other severe neurological abnormalities.” Her only communication is “babble.” She will require 24-hour-a-day care for the remainder of her life. Her medical expenses to date exceed $750,000.

The summary judgment argument of the defendants, individual owners of Harbor Creek condominium units, is based on the following undisputed facts: (1) They are tenants-in-common of the common areas of the complex,[1627]each owning an undivided 1/152 interest; (2) they have delegated control and management of the common areas to their homeowners association (HOA), which has no ownership interest in the property; (3) the HOA has liability insurance of $1 million; and (4) it is authorized to assess its members for pro-rata contribution if a judgment exceeds policy limits. The owners argue that for these reasons, (a) Civil Code section 1365.7 [FN. 2] should be read to immunize them from civil liability, and (b) departure from the common law rule of property owners’ liability would serve the greater good and work no substantial detriment to injured third persons.

The Ruoffs contend the immunity of section 1365.7 is expressly limited to volunteer HOA officers or directors and cannot be expanded judicially to include others. The owners, as tenants-in-common in the common area, are subject to the same nondelegable duties to control and manage their property as are other property owners. The trial court agreed with the owners. We agree with the Ruoffs and reverse.

On appeal from summary judgment, the trial court’s determination of a question of law is subject to independent review. (Wu v. Interstate Consolidated Industries (1991) 226 Cal.App.3d 1511, 1514 [277 Cal.Rptr. 546].) [1] Initially, we note the Ruoffs’ assertion that the trial court failed to fulfill its duty under Code of Civil Procedure section 437c, subdivision (g), to specify the reasons for its determination. [FN. 3] We agree the statement of reasons-by-reference was noncompliant. But the court’s failure to perform its statutory duty does not automatically result in reversal. We need only determine whether the record establishes the owners’ entitlement to summary judgment in their favor. As stated in Barnette v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682 [187 Cal.Rptr. 219]: “We are not confined,[1628]in considering the granting of the summary judgment, to the sufficiency of the stated reasons. It is the validity of the ruling which is reviewable and not the reasons therefor. [Citation.]” (See also California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730-731 [284 Cal.Rptr. 687].)

II.

[2a] The summary judgments were granted on the basis that, as a matter of law, the individual condominium owners could not be held liable for injuries sustained in the common area of the Harbor Creek complex. The record establishes that the decision involved no determination of whether the owners had exercised due care; it involved only a determination that no duty existed. [FN. 4]

In the usual case, an owner or occupier of real property must exercise ordinary care in managing the property. (§ 1714, subd. (a).) The duty of care is owed to persons who come on the land (see generally, Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]), and ordinarily it is nondelegable. (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 331- 332 [203 Cal.Rptr. 701].)

In the case of a condominium complex, section 1365.7 immunizes a volunteer officer or director of an association managing a common interest residential development from civil tort liability if (1) the injury-producing negligent act or omission was performed within the scope of association duties, was in good faith, and was not willful, wanton, or grossly negligent, and (2) the association maintained at least $1 million of applicable general liability insurance if the development exceeds 100 separate interests. [FN. 5] (§ 1365.7, subds. (a)(1), (2), (3) and (4)(B).) Subdivision (b) allows the volunteer officer or director to recover actual expenses incurred in executing the duties of the position without losing the statutory immunity. But subdivision (c) excludes from the definition of volunteer any officer or director who, at the time of the negligent act or omission, received compensation as an employee of statutorily designated persons or entities. Under subdivision (d), the association itself does not enjoy immunity for the negligent acts or omissions of its officers or directors. Finally, subdivision (e) expressly limits[1629]the immunity of section 1365.7 to the designated persons: “This section shall only apply to a volunteer officer or director who resides in the common interest development either as a tenant or as an owner of no more than two separate interests in that development.” We find this to be a comprehensive and extraordinarily clear immunity statute.

[3a] Statutory interpretation presents a question of law. (Schuhart v. Pinguelo (1991) 230 Cal.App.3d 1599, 1607 [282 Cal.Rptr. 144].) [2b] The owners contend that in section 1365.7, the Legislature intended to immunize them from liability for tortious acts or omissions in the management and control of the commonly held property. Under established rules of statutory construction, we may not read such an intention into this unambiguous statute. [3b] “It is axiomatic that in the interpretation of a statute where the language is clear, its plain meaning should be followed. [Citation.]” (Lubin v. Wilson (1991) 232 Cal.App.3d 1422, 1427 [284 Cal.Rptr. 70]; see also Forrest v. Trustees of Cal. State University & Colleges (1984) 160 Cal.App.3d 357, 362 [206 Cal.Rptr. 595].) Moreover, we must attach significance to every word of a statute. (See McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454 [282 Cal.Rptr. 828].) [2c] If we were to read the statute as the owners urge, we would need to read out the express limitation of immunity of subdivision (e). We are not permitted or inclined to do that. [FN. 6]

We also reject the owners’ convoluted argument that by reverse implication, based on a reading of Davert v. Larson (1985) 163 Cal.App.3d 407 [209 Cal.Rptr. 445], section 1365.7 endows them with a right to delegate their duties of control and management of the common areas and thus escape liability to which they would otherwise be subjected under established law.

In Davert, the Court of Appeal, in a case of first impression, reversed a summary judgment in favor of a defendant property owner who asserted “he owed no duty of care to plaintiffs as a landowner because he took title to his interest in the property subject to a recorded declaration of covenants, conditions and restrictions delegating exclusive control over the subject property to [a property owners’ association].” (Davert v. Larson, supra, 163[1630]Cal.App.3d at p. 409.) The owner claimed his ownership interest of 1/2500 was too small to provide a basis for liability and he personally exercised no control over the management of the property. (Id. at p. 410.) The appellate court noted with approval the conclusion of “a leading commentator” that “individual owners of common areas in California are liable to third parties for torts arising in common areas. [Citation.]” (Id. at p. 411.) In its discussion, the court alluded to the fact that existing California law did “not require insurance to protect third parties in the case of common area torts.” (Id. at p. 412.) Thus, “relieving individual owners in common of liability would eliminate any motivation on the part of any party to exercise due care in the management and control of commonly owned property and could leave third parties with no remedy at law.” (Ibid.) The Davert court concluded: “[T]enants in common of real property who delegate the control and management of the property to a separate legal entity should not be immunized from liability to third parties for tortious conduct.” (Ibid.)

The owners say Davert means that if the duty of control and management is delegated to a separate legal entity and sufficient liability insurance is available for injured parties, then the reason for imposition of liability on the individual owners evaporates. The argument continues: Since section 1365.7 was enacted after publication of Davert, and requires HOA’s to maintain certain minimum levels of liability insurance, the Legislature must have been reacting to Davert and intending to eliminate common law rules regarding property owners’ liability.

The argument is crafty, but unavailing. [4] In the first place, when we are urged to find that a statute is intended to silently abrogate an established rule of law, we must heed the Supreme Court’s admonition that “it should not ‘be presumed that the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.’ [Citation.]” (Theodor v. Superior Court (1972) 8 Cal.3d 77, 92 [104 Cal.Rptr. 226, 501 P.2d 234]; see also McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn., supra, 231 Cal.3d at p. 1455.) [2d] In the second place, the owners’ reliance on Davert for negative inferences is off the mark. The clear holding of Davert is that tenants in common who delegate control and management of the property remain jointly and severally liable for tortious acts or omissions causing injury to third persons. We do not deem the court’s observation about the wisdom of retaining landowners’ liability where ownership is shared to be judicial advice that a tenant in[1631]common can buy his or her way out of liability by purchasing insurance for the property manager. [FN. 7]

III.

The owners attempt to justify the summary judgment with a number of other policy-type arguments to illustrate why we should rewrite section 1365.7. They assert the HOA’s liability insurance of $1 million is sufficient to take care of the needs of the Ruoffs, who would therefore suffer no detriment if liability were not imposed on the individuals. But even if we agreed with the proposition in the abstract-and we do not-the issue of sufficiency of the insurance policy would be a question of fact, inappropriate for determination by summary judgment. (Code Civ. Proc., § 437c, subd. (c).) [FN. 8]

The owners also contend that because the HOA can make assessments against the association members for pro-rata shares of any judgment exceeding the policy limits, immunity for the individuals will not work any hardship on the Ruoffs. But, as the Ruoffs astutely observe, “[p]roblems with this approach abound,” [FN. 9] and “the power to assess is not the panacea Defendants argue.” Indeed, it might prove to be a wholly illusory remedy.

The owners assert that under the HOA declaration of covenants, conditions and restrictions, the HOA is incorporated as a nonprofit mutual benefit[1632]corporation, therefore the members are entitled to immunity under Corporations Code section 7350, subdivision (a). [FN. 10] They argue that because the HOA is a corporation, the Ruoffs must look solely to the corporate assets. The problem with this contention is that the record does not establish the fact of incorporation. [FN. 11] Therefore, we express no opinion as to its merits. The judgments in favor of the owners are reversed and the matter remanded for further proceedings in accordance with this decision. The Ruoffs shall recover their costs on appeal.

Moore, Acting P. J., and Wallin, J., concurred.

FN 1. Summary judgments were granted in favor of Raymond J. Niksarian; Sonya Niksarian; Anne S. Bates; Frank Bates and Anne S. Bates, Trustees for the Trust Agreement of Frank F. Bates and Anne S. Bates; Warner Younis; Pat Younis; Judd L. Miller; William E. Hasbrouck; Robert Banks; Nancy Banks; Wendell F. Deeter and E. Violet Deeter as Trustees for the Deeter Family Revocable Trust; Ronald F. Lackey; Barbara A. Lackey; and Dorothy Auerbach.

FN 2. Civil Code section 1365.7 is part of the Davis- Stirling Common Interest Development Act ( Civ. Code, div. 2, pt. 4, ch. 1, § 1350 et seq.). The act provides conditional immunity from tort damages to “a volunteer officer or director who resides in the common interest development either as a tenant or as an owner of no more than two separate interests in that development.” See discussion, post.

All further statutory references are to the Civil Code unless otherwise specified.

FN 3. Code of Civil Procedure section 437c, subdivision (g) provides, in pertinent part: “Upon the grant of a motion for summary judgment … the court shall … specify the reasons for its determination,” referring to the evidence supporting and opposing which shows no triable issue exists.

When counsel asked the court to specify its reasons for granting the summary judgment motions, the court responded: “I have spent more time thinking about this than any other case in my inventory. I am incorporating every argument that the moving parties have made as the basis for my decision. I am throwing it all to the Fourth. [¶] Your briefs are the bases for your positions when the court of appeals [sic] deals with this issue. I will not make any independent findings.”

FN 4. The court’s order granting summary judgment states: “[T]he court finds as a matter of law that the aforementioned defendant homeowners did not breach any duty owed to the plaintiffs herein.” The record establishes that no factual evidence regarding the owners’ acts or omissions was before the court. The owners relied on the HOA’s liability policy, its internal rules, and declarations of individual owners who said they did not exercise control of the common areas.

FN 5. The Harbor Creek complex contains 152 units, and there is no dispute that the number of separate interests exceeds 100.

FN 6. When it enacted section 1365.7, the Legislature was also aware of the Uniform Common Interest Ownership Act of 1982, but did not adopt it. Under section 3-107 of the uniform act, an HOA is responsible for maintenance of the common areas of a condominium complex, unless the HOA’s declaration provides otherwise. Under section 3-113, individual unit owners are immune from civil liability for injuries occurring in the common areas if the HOA maintains sufficient liability insurance meeting certain standards and naming each condominium owner as an insured party with respect to liability based on his or her ownership of the common areas. Obviously, the Legislature and the authors of the uniform act took different paths.

FN 7. We also reject the owners’ half-hearted assertion that section 1365.7 violates equal protection under the federal and state Constitutions. The matter warrants little discussion. The owners say the immunity offered to the HOA’s volunteer officers and directors “is irrational … because the effect is to immunize those who are vested with control over the common area, and allow potential liability to remain with those who retain no control over the common area.” As the Ruoffs observe, there is no fundamental right or suspect class involved, thus the classification need only bear a rational relationship to a legitimate state purpose. (Weber v. City Council (1973) 9 Cal.3d 950, 959 [109 Cal.Rptr. 553, 513 P.2d 601].) The bill’s author stated: “This bill is greatly needed to protect the directors and officers of the 13,000-16,000 community interest associations in California that will need 30,000 to 40,000 volunteers to serve on the boards of these associations each year. That need may not be met as many people are not volunteering because they fear being sued.” (Letter dated Sept. 1, 1991, from Assemblywoman Lucy Killea to the Honorable George Deukmejian.)

FN 8. In light of the apparent irremediable nature of Martha’s injuries and the continuing accrual of medical expenses which are already approaching the $1 million policy limit, the owners appear to be blowing smoke when they claim the insurance is “sufficient.”

FN 9. The Ruoffs pose apt questions: “[W]hat happens to the current owners who sell their units before judgment? What happens to a unit owner whose individual insurance company denies coverage for an assessment in contract, but does [sic] over third party injuries occurring in common areas? What about those who sell after judgment, but before the assessment? What happens to a future unit owner whose individual insurance company denies coverage because the ‘loss’ preceded the commencement of the policy?”

FN 10. Corporations Code section 7350, subdivision (a) relieves members of a nonprofit mutual benefit corporation from personal liability for the debts, liabilities or obligations of the corporation.

FN 11. The only proof of incorporation offered is a copy of article II, section 2.01 of the HOA declaration, stating: “Organization of Association. The Association is or shall be incorporated under the name of Harbor Creek Community Association, as a corporation not for profit under the Nonprofit Mutual Benefit Corporation Law of the State of California.” This is hardly proof. Moreover, the various separate statements of undisputed facts in support of the summary judgment motions do not contain any reference to incorporation and member immunity. Finally, we do not even know if such a defense is at issue in the lawsuit because we have not been provided with a copy of the answers filed by the defendants.

Notice of Change in Insurance Coverage

An association is required to disclose and summarize information regarding the association’s insurance policies as part of the association’s annual budget report that is distributed to the association’s members. (See “Insurance Disclosures.”) When any of the policies lapse, are changed, are cancelled and are not immediately renewed, Civil Code Section 5810 requires the association to provide notice of the same to its members:

“The association shall, as soon as reasonably practicable, provide individual notice pursuant to Section 4040 to all members if any of the policies described in the annual budget report pursuant to Section 5300 have lapsed, been canceled, and are not immediately renewed, restored, or replaced, or if there is a significant change, such as a reduction in coverage or limits or an increase in the deductible, as to any of those policies. If the association receives any notice of nonrenewal of a policy described in the annual budget report pursuant to Section 5300, the association shall immediately notify its members if replacement coverage will not be in effect by the date the existing coverage will lapse.” (Civ. Code § 5810.)

Insurance Disclosures

An association is required to prepare and distribute to its members an annual budget report pursuant to Civil Code Section 5300 not less then thirty (30) nor more than ninety (90) days prior to the beginning of the association’s fiscal year. (See “Annual Budget Report.”) One of the items of information that must be included in the annual budget report is a disclosure summarizing the association’s property, general liability, earthquake, flood, and fidelity insurance policies. (Civ. Code § 5300(b)(9).)

Required Contents of Insurance Summary
The insurance summary must include information pertaining to each policy of insurance carried by the association, as well as the statement required by Civil Code Section 5300(b)(9).

Information Pertaining to Insurance Policies – For each policy of insurance carried by the association, the summary must include all of the following: the name of the insurer, the type of insurance, the policy limit, and the amount of the deductible (if any). (Civ. Code § 5300(b)(9).)
Required Insurance Statement – The insurance summary must also include the following statement in at least 10-point boldface type:

“This summary of the association’s policies of insurance provides only certain information, as required by Section 5300 of the Civil Code, and should not be considered a substitute for the complete policy terms and conditions contained in the actual policies of insurance. Any association member may, upon request and provision of reasonable notice, review the association’s insurance policies and, upon request and payment of reasonable duplication charges, obtain copies of those policies. Although the association maintains the policies of insurance specified in this summary, the association’s policies of insurance may not cover your property, including personal property or real property improvements to or around your dwelling, or personal injuries or other losses that occur within or around your dwelling. Even if a loss is covered, you may nevertheless be responsible for paying all or a portion of any deductible that applies. Association members should consult with their individual insurance broker or agent for appropriate additional coverage.” (Civ. Code § 5300(b)(9).)

Notice of Change in Insurance Coverage
Civil Code Section 5810 requires an association to provide its members with individual notice if any of the insurance policies described in the annual budget report have been changed, lapsed, been canceled, are not renewed. (See “Notice of Change in Insurance Coverage.”)

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